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Thread: Legal Beagles?

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    Great Pumpkin NutmegCT's Avatar
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    Legal Beagles?

    I wondered if any BCF member can translate the following into "Average Joe" English so I can understand it.

    Unless expressly agreed in writing by the applicable party, neither the failure of nor delay by any party to this Agreement to enforce any right hereunder or to demand compliance with its terms is a waiver of any right hereunder. No action taken pursuant to this Agreement on one or more occasions is a waiver of any right hereunder or constitutes a course of dealing that modifies this Agreement.


    This is part of a contract I may be signing, to make a contribution to a 501c3 non profit.

    yikes.
    Tom M.
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    Yoda Gliderman8's Avatar
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    Re: Legal Beagles?

    Not a lawyer but it appears to me that you are expressly held/bound by the agreement you’re signing.
    Just my interpretation.
    Elliot
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    Re: Legal Beagles?

    Sometimes a party's behavior in performance of a contract will be deemed to construe, moderate or waive the strict terms of the contract. E.g., If your mortgage company lets you run 40 days late in your payments for a year, they cannot one month suddenly decide to accelerate and foreclose on that ground. Notice that strict compliance will be required and an opportunity to cure would need be given. The second sentence is not well drafted, but if your landlord has come to you to collect the rent for 6 months while the lease says you come to him, such a sentence would still require you to come to him if so requested. I am admitted only in Florida and this should not be construed as specific legal advice.
    Bob

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    Administrator Basil's Avatar
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    Re: Legal Beagles?

    Translation: We gonna take your money and we ain't a gonna be giving it back!
    “The smallest act of kindness is worth more than the grandest intention.” - Oscar Wilde

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    Great Pumpkin NutmegCT's Avatar
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    Re: Legal Beagles?

    Thanks gents for the help. I also got some private messages on this too.

    Remember the old Car Talk legal team: "Dewey, Cheatham, and Howe"

    Or in an earlier iteration - Three Stooges as lawyers: "Dewey, Burnham, and Howe"

    As proctologists: "Proba, Keister, and Wince"

    As divorce lawyers: "Ditcher, Quick, and Hyde."

    TM
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    Re: Legal Beagles?

    This is a typical clause in contracts, usually under the heading of "Non-Waiver" or "Miscellaneous". What it means, by way of example, is if the contract states that payment is due on the 1st of the month, and I let you slide to the 5th or 6th for one month, or even 10 months, I did not waive the right to enforce the contract term of the 1st of the month; and by letting you slide, this did not create an argument that our course of dealing altered the terms of the contract. Course of Dealing is a defense to strict contract interpretation and is found in the Uniform Commercial Code. Disclaimer: I am licensed only in Ohio, and this is not intended to be legal advice, just a general opinion.
    John Kuzman
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    Re: Legal Beagles?

    Why can't that just put this stuff in plain English to begin with? Job security?
    “The smallest act of kindness is worth more than the grandest intention.” - Oscar Wilde

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    Re: Legal Beagles?

    Because plain English can be twisted around and written like the contract you need a lawyer to interpret what you have just read.

    David

    Quote Originally Posted by Basil View Post
    Why can't that just put this stuff in plain English to begin with? Job security?
    TR3A TS75524L

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    Luke Skywalker
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    Re: Legal Beagles?

    I gave Tom an example of the clause in action. Landlord's failure to collect 5% penalty for a late rent payment as set forth in the lease may give rise to a defense of waiver the next time the tenant is late and LL tries to collect a late charge. Waiver is the voluntary relinquishment of a known legal right.

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    Re: Legal Beagles?

    This is why Business Law 101 was my last law course...and when I need a legal paper, I use a lawyer.
    Dave Reese
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    Luke Skywalker
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    Re: Legal Beagles?

    There has been a trend in the legal profession towards plain language whenever possible. No more "Party of the First Part", etc. Most residential leases in CT are all plain language. Lawyers still love to use Magic Words - usually in 3's. "Give, devise and bequeath"; "right, title and interest". Some Latin phrases are still in use because they are words of art. "Res Ipsa Loquitor" - the thing speaks for itself, meaning an accident that could only occur due to someone's negligence, like sewing a scalpel inside a patient or leaving a flowerpot on a ledge that falls and hits a passerby in the head. Plaintiffs lawyers love a Res Ipsa case because you don't have to prove negligence. Per Stirpes is another legal term used in Wills and Trusts as distinguished from Per Capita. Anyone know the difference? And why is it important? End of lesson.

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    Re: Legal Beagles?

    Ooh, Ooh, Ooh Mr. Kotter, I know the answer to per stirpes and per capita! Wouldn't be fair as I used to dabble in probate and estate planning law.
    John Kuzman
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    Luke Skywalker
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    Re: Legal Beagles?

    Problem - Adam dies leaving a net estate of $100,000.00. He had two sons, Ben and Charley His Will left everything to his 2 sons equally or to the children of any deceased child. Ben and Charley both died before Adam. Ben had 2 sons - David and Edward. Charley had four daughters - Amy, Becky, Cathy and Dora.

    Who gets the money and how much per stirpes?
    Who gets the money and how much per capita?
    Why is this important?

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    Re: Legal Beagles?

    PDYou did not say whether the hypothetical state's per capita statute specifies with representation or without. I will not actually go thru the problem to see if it matters. While I am no fan of many in my profession, believe it or not, we use seemingly inscrutable language because it is precise and has established meanings. Some things mean nothing, too little or too much in plain language. Bob

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    Luke Skywalker
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    Re: Legal Beagles?

    No statute. What did the Testator intend? Let's say you represent the 4 daughters.
    (In reality, in a properly drafted Will, this situation would never happen. But you could always argue...)

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    Yoda HealeyRick's Avatar
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    Re: Legal Beagles?

    I'll take Estates and Trusts for $200, Alex. And if you include a Rule Against Perpetuities question, I'm outta here.
    Rick

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    Luke Skywalker
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    Re: Legal Beagles?

    Did someone mention the Rule Against Perpetuities? OK - you asked for it. Here it is.
    The Rule Against Perpetuities - anyone who owns an Austin Healey is ****ed in perpetuity.

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    Re: Legal Beagles?

    "or to the children of any deceased child" makes a strong argument for per stirpes distribution.
    Per-Stirpes-v-Per-Capita-UPDATED.jpg
    John Kuzman
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    Great Pumpkin NutmegCT's Avatar
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    Re: Legal Beagles?

    John - that chart is excellent. Best illustration I could imagine. thanks.
    Tom m.
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    Luke Skywalker
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    Re: Legal Beagles?

    Per stirpes - "by representation" is usual. Kids take the share their parent would have been entitled to.
    Per capita - everyone in the same class shares equally.

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